While thousands called for a Pico Rivera teacher’s firing after video of his rant about the military was published on Facebook, there’s no definitive answer on whether the school district can fire him for expressing his views.

Gregory Salcido, a history and government teacher at El Rancho High School who also is a Pico Rivera City Council member, was placed on administrative leave while the school district investigates his conduct.

But what disciplinary measures teachers like Salcido should face over the opinions they share in their classrooms remains open to debate.

“There are areas where the law is clear, or mostly clear,” said David Snyder, executive director of the San Rafael-based nonprofit First Amendment Coalition. “This is not one of those areas.”

Salcido’s comments to students during class time were apparently sparked when he spotted one wearing a Marines sweatshirt. He then called military members “the lowest of the low,” among other disparaging remarks.

Snyder said court decisions on free speech in schools are all over the placed — courts must balance a teacher’s First Amendment rights with the public interest of regulating what’s being taught in public schools. All that’s clear is that teachers have fewer free speech rights than the average citizen when they’re on the job.

Gregory Salcido stands in front of El Rancho High School in Pico Rivera. (SGVN/Staff Photo by Keith Durflinger/SWCITY)

“No matter how you slice it … I think any court would say that the teacher’s First Amendment rights are at least a little bit more limited than if the teacher made these comments at a city council hearing,” Snyder said.

However, whether a teacher is effective at his or her job could also make a difference in how they are punished for their speech.

Erwin Chemerinsky, the dean of the U.C. Berkeley School of Law, said school districts can “insist that teachers are professionally competent and appropriate.” If the teachers don’t meet that requirement, firing them could be an easier case.

“So if a teacher is supposed to be teaching social studies and doesn’t teach social studies, but goes and talks about baseball all the time, that’s not speech that’s protected by the First Amendment,” Chemerinsky said.

However, “just because a teacher expresses opinions that may upset people, that is not a basis for disciplining or firing a teacher,” he said. He also said he though it would be “very troubling,” if ERUSD punished Salcido if he otherwise met the district’s standards for competency.

Chemerinsky was the founding dean of U.C. Irvine’s School of Law. While there, he wrote editorials for the Orange County Register, many of them on the topic of free speech.

FILE PHOTO: A student sued Capistrano Valley High teacher James Corbett for comments he made about religion in 2007.

In 2011, Chemerinsky represented Capistrano Valley High School teacher James Corbett, who was sued for telling students that creationism — the literal interpretation of the Bible’s creation story and the rejection of the theory of evolution — was “religious, superstitious nonsense.”

The U.S. 9th Circuit Court of Appeals ruled in Corbett’s favor after a lower court found in part for the student-plaintiff because he had not been warned by the district that his comments could violate students’ rights.

Snyder said the ruling meant that whether a school district has rules regulating speech could be the key in these cases.

“A teacher can’t be punished just for pissing people off,” he said. “But if there’s some uniformly applied rule that is legitimately related to the school’s pedagogical mission, such as no profanity, that he violated, then the First Amendment may not apply.”

Still, there were other aspects of what Salcido said that could prove problematic for the teacher, including the possibility that he violated the student’s free speech rights — in the audio of his comments, Salcido can be heard telling the student bearing the Marines logo not to wear any clothing supporting the military.

“Don’t you ever freakin’ bring anything military into this classroom,” Salcido said.

Snyder said as a teacher, Salcido speaks on behalf of ERUSD. So in his opinion, the command could “be a violation of [the student’s] First Amendment rights.”

“I don’t think there’s any court in the country that would say that a school district could bar the wearing of a T-shirt or sweatshirt like that,” Snyder said.

Hayley Munguia covers Long Beach City Hall for the Southern California News Group. She previously worked as a data reporter for FiveThirtyEight and has written for The Week, the Jerusalem Post and the Austin American-Statesman, among other publications. She's originally from Austin, graduated from NYU and will pet a dog any chance she gets.

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